The court may grant a new trial of any action or proceeding when all of the following conditions exist:
§ 663.1.Motion For New Trial Upon Loss Or Destruction of Records
Title 8. Of the Trial and Judgment In Civil Actions · Chapter 7. Provisions Relating to Trials in General · Article 2. New Trials · Enacted 1953 · no amendments on record · Last verified July 28, 2026
In one sentenceSection 663.1 lets a court grant a new trial when a pending motion for new trial's record was lost or destroyed by a calamity, no other record can be obtained, and restoring or settling that record is impossible or impractical, without requiring a bill of exceptions to ever be settled.
Full Text of § 663.1
(a) Any proposed bill of exceptions or statement of the case on motion for a new trial is lost or destroyed by reason of conflagration or other public calamity.
(b) No other record of the proceedings upon the trial thereof can be obtained.
(c) Such action or proceeding is subject to review by motion for new trial pending at the time of such loss or destruction.
(d) The court in which such action or proceeding is pending deems it impossible or impracticable to restore such proceedings and to settle a bill of exceptions or statement of the case containing such proceedings, so as to enable the court to review the judgment or order therein by motion for new trial.
(e) At the time of such loss or destruction a motion for new trial was pending. In order to grant such new trial, it shall be unnecessary to have any bill of exceptions or statement of the case settled, but upon the facts recited in this section being shown to the satisfaction of the court by affidavit or otherwise, the court may grant such new trial.
Plain-English Summary
This section covers a narrow disaster scenario: a fire, flood, or similar calamity destroys the trial record while a new-trial motion is still pending. Five conditions all have to be true — the bill of exceptions or statement of the case was lost or destroyed by conflagration or other public calamity; no other record of the trial proceedings can be obtained; the case was subject to review by new-trial motion at the time of the loss; the court finds it impossible or impractical to restore the proceedings or settle a replacement record; and a new-trial motion was still pending when the loss happened.
When all five line up, the court can grant the new trial without ever settling a bill of exceptions — the facts supporting the calamity and the loss just have to be shown to the court's satisfaction, by affidavit or otherwise.
Frequently Asked Questions
When can a court grant a new trial under § 663.1?
When a pending new-trial motion's record was lost or destroyed by a calamity and can't be restored or replaced.
Does the bill of exceptions still need to be settled?
No, § 663.1 makes that unnecessary once all five conditions are shown.
How are the loss and calamity proven?
By affidavit or otherwise, to the court's satisfaction.
Amendment History
Added by Stats. 1953, Ch. 52.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: lost trial record new trial californiadestroyed court records new trial